Beinisch Drops a Bombshell

The bombshell dropped by the High Court of Justice yesterday is hidden in one of the ruling's final pages. Supreme Court President Dorit Beinisch wrote that so far, no American, British or New Zealand court has had to rule on whether privatizing prisons is unconstitutional. But many experts, she noted, have argued that if this question did arise in Europe, it would be rejected out of hand as contrary to the European Convention on Human Rights.

Thus four years after the petition was filed and about a year after the concessionaire finished building the first private prison - where 2,000 prisoners were slated to be sent - Israel's High Court has effected a revolution: It ruled in firm, unequivocal language that the problem is not the nature of the prison or the concessionaire. Rather, it said, the very principle of privatizing prisons is unconstitutional.

The High Court stressed that it was not intervening in the relations between the state and the concessionaire, who hastened to demand massive compensation. Instead, it addressed other aspects of the issue.

This ruling will not only be studied in Israel, it will also doubtless generate a conceptual revolution worldwide. And Beinisch was clearly aware of this. The ruling rests on the political and moral thought of the great philosophers who discussed the modern state and its administration, as well as on the sharp, clear statements Prof. Aharon Barak used in establishing the basis for his constitutional legislation.

The "social welfare" lobby will probably laud the court as moral and humane, and perhaps even socialist. That would be a mistake. Beinisch cites Thomas Hobbes and John Locke, and accompanies every one of her arguments with citations from Barak, who stressed that human rights must not be left in the hands of any legislator.

In fact, Beinisch's ruling is based on unequivocally liberal principles: She said that privatizing prisons violates the hard core of personal liberty.

The petitioners sought to force the court to discuss the limits of sovereignty; they wanted an answer based on the values of the state and society. The court replied that the state, through its officials, must uphold human rights, and that only the state may infringe on these rights, to a limited extent, to maintain order.

So where is the revolution? In its implications. Israel, caught up in the whirlwind of American privatization when the Western world has taken a step back, has no constitution apart from the Basic Laws the previous Supreme Court president managed to push through at the last moment. But from here, the word will spread: Privatizing the state's sovereignty and transferring its powers to interested parties may be profitable, but it is not constitutional.